FILED

NOT FOR PUBLICATION

JUN 27 2022

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CLIFTON PLEASANT, Jr., an individual No. 21-55784 and successor-in-interest of Clifton Pleasant, Sr., deceased, D.C. No. 5:20-cv-00675-JGB-SHK Plaintiff-Appellant,

v. MEMORANDUM*

HUMBERTO MIRANDA; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Jesus G. Bernal, District Judge, Presiding

Argued and Submitted May 13, 2022 Pasadena, California

Before: IKUTA, NGUYEN, and OWENS, Circuit Judges.

Clifton Pleasant, Jr. (Junior) appeals the district court’s grant of summary

judgment in favor of defendants Humberto Miranda, Tarron Broadway, the City of

Victorville, the County of San Bernardino, Julian Mata, Jorge Palacios, and Omar

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Romero. Junior’s claims arise from the death of his father, Clifton Pleasant, Sr.

(Senior). We have jurisdiction under 28 U.S.C. § 1291. We review de novo the

district court’s summary judgment, and view the evidence in the light most

favorable to the nonmoving party. Martinez v. City of Clovis, 943 F.3d 1260, 1269

(9th Cir. 2019). We also review de novo a district court’s determination on

qualified immunity. Id. at 1270.

The district court did not err in granting summary judgment in favor of the

defendants on Junior’s claim for a violation of 42 U.S.C. § 1983 based on the Due

Process Clause of the Fourteenth Amendment. First, viewing the record in the

light most favorable to Junior, no reasonable juror could find applicable the

special-relationship exception to the “general rule” that “members of the public

have no constitutional right to sue [public] employees who fail to protect them

against harm inflicted by third parties.” Hernandez v. City of San Jose, 897 F.3d

1125, 1133 (9th Cir. 2018) (quoting L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir.

1992)). At the time Senior suffered harm, he was not subject to “incarceration,

institutionalization, or other similar restraint of personal liberty.” Patel v. Kent

Sch. Dist., 648 F.3d 965, 972 (9th Cir. 2011) (quoting DeShaney v. Winnebago

Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989)).

2 Second, viewing the record in the light most favorable to Junior, no

reasonable juror could find that the state-created danger exception to the general

rule applied, given that Deputy Miranda did not leave Senior on the freeway, and

the general risk of injury to an unsupervised intoxicated individual is not “an

actual, particularized danger.” Martinez, 943 F.3d at 1271. Moreover, because

there is no evidence that Deputy Miranda was aware that Senior would wander

onto the freeway, no reasonable juror could find that Deputy Miranda “kn[ew] that

something was going to happen, but ignored the risk and exposed the plaintiff to it

anyway.” Id. at 1274 (cleaned up). Therefore, there was no genuine issue of

material fact that Senior’s constitutional due process right was violated.

Nor, as part of the qualified immunity determination, was the constitutional

right alleged by Junior “clearly established at the time of the alleged misconduct.”

Hernandez, 897 F.3d at 1132 (quoting Maxwell v. County of San Diego, 708 F.3d

1075, 1082 (9th Cir. 2013)). As to the special relationship exception, Junior

identifies no authority putting the question whether Deputy Miranda had a special

relationship with Senior “beyond debate.” Evans v. Skolnik, 997 F.3d 1060, 1066

(9th Cir. 2021) (quoting Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per

curiam)). And we reject Junior’s argument that Munger v. City of Glasgow Police

Department, 227 F.3d 1082 (9th Cir. 2000), and Penilla v. City of Huntington

3 Park, 115 F.3d 707 (9th Cir. 1997) (per curiam), clearly establish that the state-

created danger exception applies in this case. The risk of leaving an individual

wearing a t-shirt and jeans outdoors in eleven-degree weather, see Munger, 227

F.3d at 1084, or of putting an individual who had collapsed from a medical

incident into his house and locking the door so he could not be helped by third

parties, see Penilla, 115 F.3d at 710, is particularized and obvious. These cases do

not put the question whether Deputy Miranda exposed Senior to “an actual,

particularized danger” by dropping him off a hundred yards from an agreed-upon

motel beyond debate.

The district court did not err in granting summary judgment in favor of the

defendants on Junior’s claim for municipal liability. No reasonable juror could

find that the County’s custom of allowing deputies to give courtesy rides caused

Senior’s death, see Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996), because

Senior was not harmed when Deputy Miranda gave him a courtesy ride; rather, he

was harmed some time after he was dropped off. We reject Junior’s argument that

the County’s custom failed to require its deputies to provide medical care to

passengers in courtesy rides, or transport intoxicated passengers to detox centers,

because the County had no obligation to do so. See DeShaney, 489 U.S. at 196.

4 The district court did not err in granting summary judgment in favor of the

defendants on Junior’s state law claims. First, summary judgment was warranted

on Junior’s claim for negligence. Deputy Miranda did not leave Senior on the

freeway or otherwise expose him to danger, and therefore no reasonable juror

could find that Deputy Miranda engaged in “affirmative acts that increase[d] the

risk of harm to [Senior].” Frausto v. Dep’t of the Cal. Highway Patrol, 267 Cal.

Rptr. 3d 889, 905–06 (Ct. App. 2020). Second, summary judgment was warranted

on Junior’s claim for a violation of California Civil Code § 52.1 because there is

no evidence that Deputy Miranda used “threats, intimidation, or coercion” at any

point during his interaction with Senior, Allen v. City of Sacramento, 183 Cal.

Rptr. 3d 654, 660 (Ct. App. 2015).

Finally, we reject Junior’s argument that the district court should have

denied the defendants’ motion for summary judgment solely on the ground that the

defendants allegedly destroyed or discarded a form that Deputy Miranda completed

pursuant to California’s Racial and Identity Profiling Act (RIPA). There is no

indication that the RIPA form was “potentially relevant to the litigation,” Leon v.

IDX Sys. Corp., 464 F.3d 951, 959 (9th Cir. 2006). Junior fails to establish that the

effect of the alleged spoliation of the RIPA form on his ability to present his case

was sufficiently significant to warrant denying defendants’ motion for summary

5 judgment as a sanction. See Unigard Sec. Ins. Co. v. Lakewood Eng’g & Mfg.

Corp., 982 F.2d 363, 369 (9th Cir. 1992).

AFFIRMED.

6